Practice/Industry Group Overview
Sutherland helps retirement product and service providers across the financial services sector succeed in the heavily regulated retirement market.
With more than $18 trillion in assets, the retirement market is driven and served by numerous industries. Sutherland supports retirement product and service providers from the banking, broker-dealer, insurance, investment advice and management, mutual fund, retirement platform, recordkeeping and other sectors. We assist clients serving the market for 401(a)/401(k), 403(b) and 457 plans, traditional and Roth IRAs, executive compensation, and medical, life insurance and other welfare benefit plans. Our clients include three of the top ten 401(k) administrators, six of the ten largest variable annuity issuers and five of the ten biggest independent broker-dealers.
We understand the businesses of retirement product and service providers and the tax, ERISA, banking, insurance, securities and other regulations that shape this market. We also know the laws governing retirement plans, products and services and the agencies that regulate them. We help clients find creative, workable solutions to business challenges that often involve multiple bodies of law.
We have helped design, win regulatory approval for, and operate several hundred fixed and variable insurance, collective investment trust, mutual fund, stable value and other investment products; investment advisory, investment management and broker-dealer arrangements; retirement income and decumulation structures; and record keeping and other service arrangements for the retirement market. We advocate for our clients in regulatory proceedings and examinations before the Treasury, IRS, EBSA/DOL, PBGC, SEC, FINRA, OCC, state regulators and other agencies, as well as in court.
Industry-specific knowledge. With about 150 lawyers serving financial services industries, we understand the business needs and regulatory environments for banks, insurance companies, mutual funds, securities firms and other retirement product and service providers. Our multidisciplinary team understands your industry and goals.
Experience with the full range of retirement plans. We assist clients with 401(k) and other 401(a) plans, 403(b) plans, 457 plans, all forms of IRAs, nonqualified deferred compensation plans and medical, life insurance and other welfare benefit plans.
Experience with a wide range of plan sponsors. We understand the needs of plan sponsors and fiduciaries. The attorneys in our employee benefits practice represent a number of employers, including manufacturing, retail and technology companies; tax-exempt organizations; government entities and associations; and financial institutions, insurance companies, investment advisers and consulting firms, as well as multiemployer plans.
Experience with retirement products and services. With more than 30 years of experience, Sutherland has wide and deep insight into the evolution of the retirement market, its regulation and the products and services specific to that market.
Vision. We anticipate issues and promptly communicate concerns and ideas. We closely monitor legal, regulatory and industry actions to stay on top of emerging developments.
Practical solutions. We focus on providing business-oriented advice, not academic legal dissertations.
Nationally recognized attorneys. Several of our Retirement Products and Services attorneys have been recognized by Chambers.
Agency and industry backgrounds. Our attorneys include former attorneys with the Solicitor’s Office at the Department of Labor, IRS, SEC, FINRA, the New York State Insurance Department and other agencies, as well as a former legislative counsel to the ERISA Industry Committee. Former Sutherland partners currently are serving as benefits tax counsel and deputy benefits tax counsel at the Treasury Department.
Nuts and Bolts
- Retirement platforms
- Business objectives, native regulation and internal processes of the platform
- Overlay of ERISA, tax, securities and other regulation specific to this market
- Requirements and expectations of plan sponsors and participants
- Administration and recordkeeping
- Preparing model documentation, including all aspects of turnkey programs, and securing IRS approvals
- Supporting recordkeeping and plan administration with advice on tax, ERISA, securities, disclosure, reporting and other issues arising in daily business operations
- Structuring outsourcing and systems integration projects
- Retirement products
- Designing financial instruments for plan investment in accordance with tax, ERISA, Title VII, banking, insurance, securities law and other applicable requirements and expectations, including:
- Variable insurance products, mutual funds and bank collective trust funds (including products not registered under the Investment Company Act)
- Longevity and investment guarantees, and other decumulation arrangements
- Fixed return and stable value products (stable value funds, BICs, GICs, synthetic GICs and general account insurance products with market value adjustments), including revised terms and new providers subsequent to the financial crisis
- Pooled real estate investment vehicles in various forms ranging from commercial office buildings to timberland (including vehicles for tax-effective participation in projects, partnerships and leveraged real estate)
- Other special purpose investment vehicles
- Specialized insurance programs (corporate-owned life insurance and trust-owned life insurance)
- Arrangements and disclosures designed to reflect the ERISA section 404(c) and QDIA regulations
- Plan level, including 404a-5 disclosures
- Product and service level, including 408(b)(2) disclosures
- Directing self-audits and other compliance activities relating to fiduciary responsibility, other legal compliance and tax reporting
- Investment advice and management
- Structuring plan-level and participant-level investment advice and management arrangements to comply with ERISA, Investment Advisers Act and other applicable laws, including:
- Participant education and advice programs
- SMAs and similar arrangements
- Wrap fee programs
- Prohibited transaction solutions for proprietary products
- Marketing, sales and distribution
- Advising both plan providers and selling firms on licensing, distribution agreements, sales compensation, advertising, disclosure and rollover programs
- Designing trading operations
- Advising on indirect compensation, fee rebating and fee disclosure
- In-house benefit plans for executives, employees and sales personnel
- Developing in-house plans sensitive to the regulatory, worker classification and other dynamics particular to retirement product and service providers
- Investment transactions
- Structuring sophisticated investment transactions, including:
- Hedge funds, private equity and similar investments
- Real estate
- Acquisition and sale of retirement businesses
- Representing purchasers and sellers (in stock, asset, reinsurance or other transactions) of:
- Retirement product manufacturers
- Investment advisers specializing in the retirement market
- Retirement distribution channels, including broker-dealers
- Books of retirement business
- Enforcement and litigation
- Defending retirement product and services providers and selling firms in audits involving:
- Employee Benefits Security Administration (EBSA) of the Department of Labor (DOL)
- Internal Revenue Service (IRS)
- Securities and Exchange Commission (SEC)
- Financial Industry Regulatory Authority (FINRA)
- Office of the Comptroller of the Currency (OCC)
- State regulators
- Representing product and service providers and selling firms, as well as plan sponsors, in a wide range of ERISA litigation and other litigation matters raising:
- Allegations of ERISA fiduciary or nonfiduciary liability
- Available remedies against fiduciaries and nonfiduciaries
- Applicability of ERISA to various compensatory arrangements
- Benefits eligibility
- Valuation issues
- Preemption, including its effect on non-ERISA professional liability claims
- Tax qualification and deduction issues
- Securities and insurance law issues
- Allegations of misrepresentations, omissions and suitability
- Fiduciary liability insurance coverage
- Title I issues
- Revenue sharing and other forms of indirect compensation
- Policy and regulation
- Assisting with legislative solutions
- Advocating for our clients before the Treasury, IRS, DOL, PBGC, SEC, FINRA, state regulators and other agencies with respect to:
- Advance guidance
- Comments on proposed regulations and other initiatives
Clients turn to Sutherland because we understand their industries and goals, and provide practical, creative, business-oriented advice around retirement products and services.
Sutherland designs participant education and advice programs.
Sutherland works with plan sponsors in different industries to develop nonfiduciary and fiduciary programs that will enhance education and advice for defined contribution plan participants.
Sutherland is at the forefront of responding to Labor Department proposals to redefine ERISA fiduciary status and its fallout on providers.
The U.S. Department of Labor has proposed to redefine ERISA fiduciary status in terms that may significantly impact financial service providers to retirement plans and IRAs. Sutherland is representing a substantial industry organization with respect to that proposal and advising a number of companies on the consequences of, and their responses to the proposal.
Sutherland develops first-of-its kind retirement income products.
Our team is developing lifetime income products for retirement plan participants. We advised on the structure and design of the first product that will divide the income guarantee among more than one annuity issuer for credit diversification purposes and seeking regulatory guidance on various products from IRS/Treasury and state insurance commissioners.